BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

IN THE SUPREME COURT OF INDIVA

PUBLIC INTEREST LITIGATION

PUBLIC INTERESST LITIGATION NO. __2019

Mrs. KAMALA MEHTA …PETITIONER NO 1

LAMNESTY INTERNATIONAL (NGO) ... PETITIONER NO 2
Mr. RAJU KUMAR ... PETITIONER NO 3
V.
UNION OF INDIVA …RESPONDENT

SUBMITTED IN THE REGISTRY OF THE

SUPREME COURT

THE HUMBALE SUBMISSION ON BEHALF OF PETITIONER IN

THE MATTER OF
KAMALA MEHTA & OTHERS VS UNION OF INDIVA.

NAME: ARATI WAINGANKAR

CLASS: CLASS: III LL.B (LC1619148).

1
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

TABLE OF ABBREVIATIONS

ABBREVIATION FULL FORM

AIR All India Reporter

Anr. Another

CrPC Criminal Procedure Code

Dy. Deputy

Edn. Edition

Hon’ble Honorable

i.e. That is

Ltd. Limited

No. Number

Ors. Others

2
MEMORIAL ON BEHALF OF PETITIONER
BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

Sec. Section

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Report

u/s Under Section

V. Versus

& And

3
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

INDEX OF AUTHORITIES

Satya Ranjan Bakshi V. Emperor AIR 1929 Cal. 309 at 314

1. ShreyaSinghalV. Union of India AIR 2015 SC 1523
2. Speiser V. Randall 357 US 513
3. State of Andhra Pradesh V. Challa Ramakrishna Reddy AIR 2000 SC 2083
4. State of Assam V. FasiullahHussain (2013) 4 GLT
5. State of Bihar V. GhulamSarwar AIR 1965 Pat 393
6. State of Gujarat V. Mirzapur Moti Kureshi Kassab Jamat AIR 2006 SC 212
7. State Of Punjab V. Devans Modern Breweries Ltd (2004) 11 SCC 26
8. State of Rajasthan V. RavindraSinghi (2001) 3 WLN 242
9. Sushila Saw Mill V. Sate of Orissa (1995) 5 SCC 615
10. Tara Singh Gopi Chand V. State AIR 1951 Punj. 27
11. Union of India V. Motion Picture Association AIR 1999 SC 23345
12. Ward (1872) LR 1 CCR

A. BOOKS REFERRED

S. No. NAME

1. Durga Das Basu, Introduction to The Constitution of India (22nd Ed)

2. Indian Penal Code – RatanLal and DheerajLal Volume 1

4
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

3. Indian Penal Code – Ratanlal And DheerajLal Volume 2

4. The Code of Criminal Procedure (CRPC), 21th edition, 2014

C.ACT, RULES AND INSTRUCTIONS

1. The Indian Penal Code 1860

2. The Criminal Procedure Code 1973
3. The Constitution of India 1950

D.ONLINE DATABASES

1. Manupatra www.manupatra.com

2. SCC Online www.scconline.in

3. Indian Kanoon www.indiakanoon
4. JSTOR www.jstor.org
5. Indian Kanoon www.indiakanoon

5
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

STATEMENT OF JURISDICTION

The Petitioner have approached this Hon’ble Court under Article 32(1) of the
Constitution. The writ petition has been accepted.

6
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

STATEMENT OF FACTS

● Indiva is a small developing country where the freedom of speech and

expression is guaranteed as a fundamental right under the Constitution of
Indiva. Bangistan is the neighbouring country of Indiva. However, in last few
months there have been various instances where freedom of speech and
expression has come under the scanner in Indiva.
● Mr. Pappu Yadav filed a criminal case under Section 124 (A) of Indiva Penal
Code, 1860 against Kamla Mehta an actor – politician who is a member of
Indiva National Party, the largest opposition party for her comment on social
media “Minister Mohan Singh said that, going to Bangistan is like going to
hell”. It is nothing like that. People are just like us and there is no difference.
They treated us very well” On the receipt of the complaint, summons were
issued against Kamla Mehta. Kamla Mehta being aggrieved by the summons
challenged the constitutionality of Sections 124(A) of The Indiva Penal Code
stating it to be violative of Article 19(1) (a) of the Constitution of Indiva
before the Supreme Court of Indiva.
● Lamnesty International, an NGO, conducted a campaign named “Broken
Families of Vienna” (Vienna being a state of Indiva) where they talked about
the human rights violations by Indiva Army on the people of Veinna and
invited the victims of these violations to speak. During the debate the Indiva
Peoples Party (IPP, which is the ruling party) was heavily criticised for its
inaction. Moreover at the end of the program the debate got heated and there
were heard some anti – Indiva slogans.
● Democratic Students Union (DSU) held protests on the hanging of Faizal
Khan Convicted of terror attack on the Parliament of Indiva on the campus of
Murli Sankar University for which the permission was refused by the
University. Anti – Indiva slogans and slogans to overthrow the government
were raised in the event. A complaint was filed against Raju Kumar the
president of DSU for the charges of Sedition. The disciplinary committee of
the University investigated the matter to find that slogans were raised by a
group of outsiders wearing masks. All Indiva Student Organization (AISO) a
student body associated with Indiva Peoples Party (IPP) was responsible for

7
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

filing the complaint against Lamnesty International and Raju Kumar under
Sec. 124 (A) of the Indiva Penal Code, 1860.
● National Crime Records Bureau in its report stated that in 2014 as many as 47
cases of sedition were filed leading to the arrest of 58 people and there has
been an alarming increase in the cases in 2015. In 2016 as many as cases have
been filed.
● Kamla Mehta, Lamnesty International and Raju Kumar filed a PIL challenging
the validity of Section 124(A) as being violative of Article 19 (1) (A) and
Article 21 of the Indiva Constitution.
● As all the above issues concern interpretation of Article 19(1) (a), 19 (2) and
21 of Indiva Constitution it was placed before a Special Bench of the Supreme
Court of Indiva to decide.

8
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

STATEMENT OF ISSUES

A. WHETHER SECTION 124A OF IPC INFRINGES THE

FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND EXPRESSION
ENSHRINED UNDER ARTICLE 19 (1) (a) OF THE CONSTITUTION ?

B. WHETHER SECTION 124A OF IPC INFRINGES THE

FUNDAMENTAL RIGHT TO LIFE AND LIBERTY ENSHRINED UNDER
ARTICLE 21 OF THE CONSTITUTION?

9
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

SUMMARY OF ARGUMENTS

A. WHETHER SECTION 124A OF IPC INFRINGES THE

FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND
EXPRESSION ENSHRINED UNDER ARTICLE 19 (1) (a) OF THE
CONSTITUTION ?

It is humbly submitted that section 124A of Indian Penal Code, 1860

constitutes an unreasonable restriction to freedom of speech and expression under
article 19(1)(a) of the Constitution of India and further the does not fall within the
ambit of section 124A .
Every citizen has the right to Freedom of Speech and expression and the same can be
restricted by imposing reasonable restrictions .The offence of sedition has an essential
requirement of disturbance of public order or incitement to violence. The alleged
slogans which were raised by the students did not lead to any public disorder or
incitement to violence and thereby arrest of these students by the police by applying
section 124A of IPC is an unreasonable restriction on the Freedom of Speech and
Expression granted under Article 19(1)(a) of the Constitution of India . Even the High
Court has failed to acknowledge the fact that the alleged offence did not per se fall
within the ambit of Section 124A of IPC.

B. WHETHER SECTION 124A OF IPC INFRINGES THE

FUNDAMENTAL RIGHT TO LIFE AND LIBERTY ENSHRINED UNDER
ARTICLE 21 OF THE CONSTITUTION?

The right of life and liberty guaranteed under Art. 21 is also subject to the rule
of proportionality.19 The
punishment proposed for the offence of sedition under S.124A is
disproportionate to the nature of the
crime.
Sedition has been made an offence under the “offences against state”,20
instead of being under the head of “offences against public tranquility”21,
even though it has interpreted by the courts to be offence that essentially

10
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

affects peace and public tranquility.22 As compared to the offences in the

latter part of the
IPC, the punishment under S.124A is grossly disproportionate as it can extend
to life imprisonment.
Moreover, the right to life guaranteed under Art.21 embrace within its sweep,
not only physical
existence, but also the quality of life. If any statutory provisions run counter to
such a right it must be held unconstitutional.23 Right to life and personal
liberty are compendium terms, which include a variety
of rights and attributes. The expanded meaning includes the right to hold a
particular opinion, to sustain and to nurture that opinion.24 Therefore, the
impugned section of the IPC violates the fundamental right
guaranteed under the Constitution.

11
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

ARGUMENTS ADVANCED

A. WHETHER SECTION 124A OF IPC INFRINGES THE

FUNDAMENTAL RIGHT OF FREEDOM OF SPEECH AND
EXPRESSION ENSHRINED UNDER ARTICLE 19(1)(a) OF THE
CONSTITUTION ?

It is humbly submitted that section 124A of Indian Penal Code, 1860 constitutes an
unreasonable restriction to freedom of speech and expression under article 19(1)(a).
1. As per the facts, Kamla Mehta, Lamnesty International, and Raju kumar were
accused of sedition. It is imminently clear that their acts did not create any Public
Disorder or any incitement of violence, nor do they fall within the ambit of
Section 124A of IPC,1860.
Freedom of speech, considered the basic freedom by most philosophical thinkers,
consists of several facets, including the right to express one’s opinion unhindered,
unfettered by the fear of retribution. It is one of the most basic elements for a
healthy, open minded democracy and is foundation of any democratic society1.
2. Under Indian Constitution Freedom of speech and expression has been guaranteed
under Article 19(1)(a) Article 19(1)(a) reads as :“Protection of certain rights
regarding freedom of speech, etc.—All citizens shall have the right— (a) to
freedom of speech and expression.”
2.1 The freedom of speech under Article 19(1)(a) includes the right to express one’s
views and opinions at any issue through any medium. It thus includes the right to
propagate opinion. The Preamble of the Constitution of India inter alia speaks of
liberty of thought, expression, belief, faith and worship.
As in Romesh Thappar V. Union of India 2, Justice Patanjali has rightfully held
that 19(1)(g) is the very basis and essence of the constitution and our democracy
which is further supported by Maneka Gandhi V. Union of India3,Bhagwati
J.,has emphasized on the significance of the freedom of speech & expression in

1Union of India V. Motion Picture Association , AIR 1999 SC 23345

2[1950] S.C.R. 594
31978 AIR 597, 1978 SCR (2) 621

12
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

these words:“Democracy is based essentially on free debate and open discussion,

for that is the only corrective of government action in a democratic set up. If
democracy means government of the people by the people, it is obvious that every
citizen must be entitled to participate in the democratic process and in order to
enable him to intelligently exercise his rights of making a choice, free & general
discussion of public matters is absolutely essential.”The right of free speech is
absolutely indispensable for the preservation of a free society in which
Government is based upon the consent of an informed citizenry and is dedicated
to the protection of the rights of all, even the most despised minorities.4

3. It is submitted that when it comes to democracy, liberty of thought and expression

is a cardinal value that is of paramount significance under our constitutional
scheme.5 However this right is subject to reasonable restrictions being imposed
under Article 19(2).

4. It is submitted that The Constitution of India does not define the word sedition.
Section 124-A of the Indian Penal Code defines the offence of ‘Sedition’ and
provides as follows “Whoever, by words, either spoken or written, or by signs, or
by visible representation, or otherwise, brings or attempts to bring into hatred or
contempt, or excites or attempts to excite disaffection towards, the Government
established by law in India6, As per the Indian law, sedition is any form of speech,
action, writing that incites hatred against the established order and harms the
systematic peace of the country.
4.1 With increasing incidents of mutiny and the rising wave of nationalism, the
offence of sedition was incorporated by the British Government under Section
124A of the IPC.The main object to bring in such a tool was to suppress the voices
against the British, not to serve the people but to rule. Bal Gangadhar Tilak was
tried under sedition law, was convicted and sentenced to six years imprisonment
to Mandalay jail7.
Mahatma Gandhi was tried in 1922 for his articles published in the
magazine Youth India. Mahatma Gandhi said that ‘the section 124-A under which

4
5
6Section 124A of Indian Penal Code,1860
7Queen Empress V. Bal Gangadhar Tilak, ILR (1898) 22 Bom. 112.

13
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

he was charged is perhaps the prince among the political sections of the IPC
designed to suppress the liberty of the citizen’8.

4.2 In Niharendu Dutt MajumdarV. King Emperor9, The Federal Court held that
“public disorder or the reasonable anticipation or likelihood of public disorder is
the gist of the offence”. The court was of the view that sedition implies resistance
or lawlessness in some form. In King Emperor V. Sadashiv Narayan
Bhalerao10 ,the Privy Council overruled the decision of the Federal Court and
held that excitement of feelings of enmity to the government is sufficient to make
one guilty under Section 124A of IPC.

4.3 A prominent objection to the inclusion of sedition as an exception to the freedom

of speech and expression under Article 19(2) was raised by SardarHukum Singh 11.
He also criticised the validation of laws on the ground that they were “in
the interest of public order” or undermined the “authority or foundation of the
state” as classifications that were too vague.12. Most vocal opposition to the
inclusion of the term sedition came from Mr. K.M. Munshi 13.The term ‘sedition’
was thus dropped from the suggested amendment to Article 13 of the
Draft Constitution.
4.4 In the case of Ramnandan V. State14, Allahabad HC declared Section 124A of
IPC unconstitutional as the Court was of the opinion that the said section
transgressed its authority by imposing unreasonable restriction on the freedom of
speech enshrined under Article 19(1)(a). As a result of this, the meaning of the
term “Sedition” given by the Privy Council was rejected.
The after math of the case is reflected in Kedarnath V. State of Bihar15 where the
Privy council’s interpretation of “Sedition” was edited i.e. it was narrowed down
to fit the current scenario as well as to fall within the ambit of 19(2) thereby
becoming a reasonable restriction. The SC made it clear that allegedly seditious
8
9
10Ramnandan v state
11
12
13
14
15

14
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

speech and expression may be punished only if the speech is an ‘incitement’ to

‘violence’, or ‘public disorder’.The crime of sedition over the years has been
narrowed down to the extent that merely criticizing the policies and actions of
government will not attract the crime of sedition but if the actions and words
incite the feelings of hatred and disaffection in the minds of the audience, it will
be considered as sedition.16

4.5 It is submitted that now sedition is being used as a political tool. The law has been
misinterpreted time and again. More than fifty years have passed since Kedarnath
judgment, which laid down the interpretation of sedition as it is understood today.
The provision under Section 124A is being allowed to be put to use irrespective of
whether or not the alleged act or words are, in fact, seditious acts, or words
constituting a “tendency to cause public disorder or incitement to violence”17.
It is submitted that the charges of sedition against the accused have failed to stand
up to judicial scrutiny. Charges for the offence of sedition today are framed with a
view to instil fear and to scuttle dissent and are in complete violation of the scope
of sedition laid down Kedarnath’s case18.
4.6 It is acknowledged that the words which directly provoke violence or which
directly threaten the maintenance of public order may deserve censure under the
restrictions mentioned in Article 19(2) of the Indian Constitution 19. However, that
is not what the misapplication of sedition law seeks to achieve. The present
practice of misapplication of sedition law aims to crush all opposition to the ruling
political party. Its regular use continues to hamper freedom of speech and
expression in the country.
4.7 It is submitted that though a very small number of sedition cases leads to actual
conviction,it causes harassment of individuals till the time judgment comes out.
There have been many cases :

(i) Prof. Binayak Sen, a civil right activist was arrested and convicted of the
offence of sedition in 2007 for having links with naxalites. Prof. Sen was
granted bail on an appeal filed before Chhattisgarh HC.

16
17
18
19

15
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

(ii) In November 2010, noted writer and activist Arundhati Roy was charged
with Sedition by Delhi Police for allegedly having made anti-India
remarks at an event organized in Kashmir on 21.10.2010.
(iii) In September 2011 Anti-Nuclear activist S.P. Udayakumar, faced
several cases of sedition for protesting against Kudankulam Nuclear power
Plant in Tamil Nadu.
(iv)In September 2012 Aseem Trivedi, a noted political cartoonist was arrested
on the 09.09.2012, based on a political activist’s complaint that his
cartoons insulted the country. The charge was in connection to a cartoon he
had made depicting the national emblem in support of the anti-corruption
movement in the country.20
(v) In 2014 67 Kashmiri students were charged with sedition by the Uttar
Pradesh police for supporting Pakistan in a cricket match between India
and Pakistan. Later the Uttar Pradesh government dropped the charges.
(vi)In October 2015 Tamil folk singer S Kovan was slapped with a sedition
case for singing songs critical of Tamil Nadu Chief Minister J Jayalalithaa
and her liquor policy. He had criticized the state government for allegedly
profiting from state-run liquor shops at the expense of the poor. The
petition was later dismissed.
(vii) A resident of Kerala, Anwar Sadhik was arrested by police under
Section 124A for a derogatory Facebook comment.
(viii) On 15.02.2016 Former DU lecturer S.A.R Geelani was arrested on
sedition charge related to an event conducted at the Press Club in New
Delhi. The police had claimed to have registered the FIR taking suomotu
cognizance of media clips of the incident. Sessions court granted bail to
Geelani.
4.8 It is submitted that according to the National Crime Records Bureau (NCRB)
Report, 201421 as many as 47 sedition cases were reported in 2014 alone, across
India which did not involve violence or incitement to violence. As per the NCRB
figures total of 58 persons were arrested for the same with only one conviction.

20Sanskar Marathe V. State of Maharashtra , Cri.PIL 3-2015

21

16
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

4.9 With reference to facts of the present case 22 in Gurjatinder Pal Singh V. State of
Punjab23, Punjab & Haryana HC quashed the FIR filed against him under Section
124A of the IPC, where in a religious ceremony organised in memory of the
martyrs during Operation Blue Star, the petitioner gave a speech to the people
present advocating the establishment “Khalistan”. He stated that the Constitution
was a “worthless/useless” books for the Sikhs. The supporters of the petitioner
then raised aggressive slogans and naked swords were raised in the air. The High
Court cited the decision of the SC in Balwant Singh V. State of Punjab, where it
was held that the mere casual raising of slogans a couple of times without the
intention to incite people to create disorder would not constitute a threat to the
Government of India.
The court have acquitted the citizens accused of the charge of sedition on the
grounds that the prosecution had failed to produce sufficient evidence to prove
that they had committed a seditious act.
4.10 Sedition law is used to threaten civilians with legal action. The Law is
misunderstood by the Police Authority, in carrying out arrests and slapping
charges, rarely have they given respect to the restriction of ‘incitement to violence
or threat of public disorder’.24 In spite of the fact that there being no imminent
threat, even then it is used to curb the right to free speech and expression.
4.11 The foundational reason adopted by the SC for validating the provision was
the retention of the sedition law in England at that time. That law of sedition was
abolished in Britain in 2009, as it was found untenable in the light of the Human
Rights Act, 1998. The emphasis on free speech by the European Convention on
Human Rights (ECHR) accelerated the process of expulsion of sedition laws from
many democracies. New Zealand followed suit after noting that in the United
States, Canada and Australia, the law is practically in disuse. Therefore, it is clear
that the British legislation is no longer a good law in the legal or political sense.
5. A law like Sedition is a colonial law and has no place in a country like India.
When we construe Article 19(1)(a) and Section 124A of IPC together it is made
out that the current application of law goes way beyond its ambit.

22
23
24Sanskar Marathe V. State of Maharashtra , Cri.PIL 3-2015

17
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

5.1 This law creates an unreasonable restriction on the fundamental right to speech
and expression. This right of freedom to speech and expression granted by Article
19(1)(a) is not completely unchecked. Article 19(2) empowers the state to place
restriction on the fundamental right of speech and expression in the interest of:-
Sovereignty and Integrity of India ,The Security of the State, Friendly relations
with foreign states, Public order, Decency or Morality, Contempt of Court,
Defamation, Incitement to an offence.

5.2 The following principles and guidelines has been laid down for considering the
constitutionality of a statutory provision upon a challenge on the alleged vice of
unreasonableness of the restriction imposed by it :
(a) The restriction sought to be imposed on the Fundamental Rights guaranteed by
Article 19 of the Constitution must not be arbitrary or of an excessive nature
so as to go beyond the requirement of felt need of the society and object
sought to be achieved.
(b) It is imperative that for consideration of reasonableness of restriction imposed
by a statute, the Court should examine whether the social control as envisaged
in Article 19 is being effectuated by the restriction imposed on the
Fundamental Rights.
(c) Although Article 19 guarantees all the seven freedoms to the citizen, such
guarantee does not confer any absolute or unconditional right but is subject to
reasonable restriction, which the Legislature may impose in public interest. It
is therefore necessary to examine whether such restriction is meant to protect
social welfare satisfying the need of prevailing social values.
(d) Restriction imposed on the Fundamental Rights guaranteed under Article 19 of
the Constitution must not be arbitrary, unbridled, uncanalised and excessive
and also not unreasonably discriminatory.
In the light of above findings, it is submitted that the object of section 124A is to
punish any person for bringing the government into contempt or to excite
disaffection towards the government by ‘violent means’ and in the present there
has been an expression of an opinion by the students. The charge of sedition
section 124A of IPC is arbitrary and excessive which goes beyond the requirement
of the need of the society. A rally had been conducted every year inside the college
premises and the alleged raising of slogans did not result in any disturbance to

18
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

public order or any violence. There is no direct and proximate nexus or a

reasonable connection by charging the students for sedition and the object sought
to be achieved by this. The test of reasonableness has to be determined in an
objective manner and from the standpoint of the interest of general public. The
charge of sedition is unreasonableness restriction and no social control can be
effectuated by imposing such restriction.
At best, the offence alleged to be committed in the present case is covered by
another law in force in India. Unlawful Activities (prevention) Act,1967,
Section2(1)(o) says that : “Unlawful Activity in relation to an individual or
association, means any action taken by such individual or association (whether by
committing an act or by words, either spoken or written, or by signs or by visible
representation or otherwise), and (iii) which causes or is intended to cause
disaffection against India”
It is humbly submitted that the restriction imposed by Section 124A of IPC
constitutes and unreasonable restriction on the Right to Freedom of Speech and
Expression (Article 19) and the same should be declared unconstitutional.
6. A state is an abstract and Government is one of the elements of the state, it is a
limb of the state. The word "Government" is not defined anywhere; what is stated
in Section 3(23) of the General Clauses Act is simply this that "Government"
includes both the Central Government and the State Government. Each
government has acted time and again under the presumption that government and
Nation are synonymous. Government established by law has to be distinguished
from the person for the time being engaged in carrying on the administration.
Thus India and Government cannot be equated.

7. In the alternative, the present appeal before this Hon’ble court arises out of
Special Leave to appeal from the decision of High court. Prima facie the case is
not made out due to the absence of any public disorder or imminent threat. Even
the judiciary have failed to take notice of this and has convicted the accused for
the crime of sedition.

19
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

B. WHETHER SECTION 124A OF IPC INFRINGES THE FUNDAMENTAL

RIGHT TO LIFE AND LIBERTY ENSHRINED UNDER ARTICLE 21 OF THE
CONSTITUTION?

The right of life and liberty guaranteed under Art. 21 is also subject
to the rule of proportionality. The punishment proposed for the offence of
sedition under S.124A is disproportionate to the nature of the crime.
Sedition has been made an offence under the “offences against state”, instead
of being under the head of “offences against public tranquility”, even though it
has interpreted by the courts to be offence that essentially affects peace and
public tranquility. As compared to the offences in the latter part of the IPC,
the punishment under S.124A is grossly disproportionate as it can extend to
life imprisonment.
Moreover, the right to life guaranteed under Art.21 embrace within
its sweep, not only physical existence, but also the quality of life. If any
statutory provisions run counter to such a right it must be held
unconstitutional. Right to life and personal liberty are compendium terms,
which include a variety of rights and attributes. The expanded meaning
includes the right to hold a particular opinion, to sustain and to nurture that
opinion. Therefore, the impugned section of the IPC violates the fundamental
right guaranteed under the Constitution.

Ozhair Hussian v. Union of India,

Consideration of the question with reference to Article 21 of the Constitution:

Article 21 enshrines right to life and personal liberty. Expression 'right to life
and personal liberty' and compendious terms which includes with themselves variety
of rights and attributes. Some of them are also found in Article 19 and thus have two
sources at the same time ( Kharak Singh v. State of U.P. ). In R.P. Limited v.
Proprietors, Indian Express Newspapers, Bombay, Pvt. Ltd. (1988) 4 S.C. 592 (at
page 613), the Supreme Court read into Article 21 the right to know. The Supreme
Court held that right of know is a necessary ingredient of participatory democracy. In
view of transactional developments when distances are shrinking, international
communities are coming together for cooperation in various spheres and they are
moving towards global perspectives in various fields including human rights, the
expression "liberty" must receive an expanded meaning. The expression cannot be
cribbed or confined to mere freedom from bodily restraint. It is wide enough to
expand to full range of rights including right to hold a particular opinion and right to
sustain and nurture that opinion. For sustaining and nurturing that opinion it becomes

20
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

necessary to receive information. In this view of the matter, we have no hesitation in

holding that Article 21 grants freedom to an individual to follow and to stick to his
opinions, and for pursuing such a course he has right to receive information and also a
right to know the ingredients or the constituent of cosmetics, drugs and food products.

Maneka Gandhi's case has been exerting multidimensional impact on

development of Constitutional law in india.

Artical 21 which had lain dormant for nearly three decades has been brought

to life by Moneka. Article 21 has now assumed "highly activest magnitude".

According to BHAGWATI, J. Art 21 "embodies a constitutional value of

supreme importance in a democratic society". IYER J. has charachterised Art.21 as

"the procedural mangnacarta protective of life and liberty."

The truth is, and this is supported by the discussion which follows, that

Art.21 has been emerging since Maneka as the Indian version of the American

concept of "due process of law". Art.21 has become the source of many substantive

rights and procedural safeguards to the people.

The S.C. has described this metamorphosis of Art.21 as followes: " Once

Gopalan was overruled in R.C. Cooper, and its pricipal extended to Art.21 in Maneka

Gandhi, Art.21 got unshackled from restrictive meaning placed upon it in Gopalan. It

came to acquire a force and vitality hitherto unimagined. A burst of creative decisions

of this Court fast on the hills of Maneka Gandhi gave a new meaning to the Article

and expanded its content and connotation".

21
MEMORIAL ON BEHALF OF PETITIONER
 BALAJI LAW COLLEGE INTERNAL MOOT 2019-20

PRAYER

In view of the aforesaid facts and circumstances, it is most respectfully prayed that
this Hon’ble Court may be pleased to:

A. That Section 124A of the Indian Penal Code, 1860 constitutes an

unreasonable restriction on the right to freedom of speech and expression under
Article 19(1)(a) of the Constitution and thus be declared unconstitutional; and
B. Kindly pass such other suitable orders as may deem fit, in the interest of
Justice, Equity and Good Conscience. and proper to meet the ends of justice in the
peculiar facts and circumstances of the case and for this act of kindness and justice,
the above named Respondent as in duty bound shall ever pray.

All of which is most respectfully submitted on behalf of,

The Petitioner

Sd/-

Counsel for Petitioner

22
MEMORIAL ON BEHALF OF PETITIONER